From this article you will learn:

• What is the list of information constituting a commercial secret of the enterprise
• What are the types of trade secrets of an enterprise

The trade secret of the enterprise minimizes the risks associated with the corporate takeover of the company, helps to increase the turnover of the company's products on the market and organizes the protection of intangible values. To protect important information of the enterprise, special documents should be concluded with employees. How to do it? What documents are classified as trade secrets of an enterprise? And how to introduce a regime of trade secrets? All this in our article.

What is a business secret

The trade secret of an enterprise or entrepreneur is a regime of confidentiality of information that allows the owner of this information to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits under existing or possible circumstances (as defined by Law No. 98-FZ dated July 29, 2004).

It can be seen from the definition that the law does not regulate the exact list of information constituting a commercial secret of an enterprise, but only defines several criteria according to which certain information can be such. An enterprise can independently determine secret information and documents constituting a commercial secret of an enterprise.

According to Law No. 98-FZ, information constituting a commercial secret of an enterprise may be as follows:

• information that has actual or potential value for the company, directly or indirectly affecting the losses and profits of the enterprise;
• information unknown to third parties;
• information not available by law.

It should be noted that the right to possess such information arises from the moment the trade secret regime is established at the enterprise. Often, to regulate these issues, a special local document is developed, which is a normative act, - company trade secret clause. Also, when an appropriate regime is introduced, a special memo is issued to employees on maintaining the trade secrets of the enterprise.

List of information constituting the commercial secret of the enterprise

Any information that is of any commercial interest can be considered confidential. Although there is a number of information that in no way can be classified as a trade secret of an enterprise in accordance with Art. 5 of Federal Law No. 98-FZ "On Trade Secrets".

Here is what cannot be included in the list of information constituting a commercial secret of the enterprise:

1. Information from documents confirming the right to engage in entrepreneurial activities and any data from constituent documents legal entity;
2. Information about the property of the state or municipal unitary enterprise/institutions and on their use of funds from the respective budgets;
3. Data on the volume of liabilities and assets, information on property, the number of employees of non-profit organizations;
4. Information about the size of the staff and composition of employees, data on the wage system, open vacancies, working conditions, and so on;
5. List of authorized persons who have the right to act on behalf of a legal entity (without issuing a corresponding power of attorney);
6. Information about the debts of the enterprise in the framework of the payment of wages and other social benefits;
7. Data on factors that negatively affect the environment in the course of the enterprise's activities, and also pose any risks in terms of the safety of individual citizens and the entire population;
8. Information about violations of the law and measures of responsibility that were applied to the enterprise for such violations;
9. Information about tenders or auctions related to the privatization of objects of state/municipal property;
10. Other information that must be public in accordance with federal law.

Any information that the employer considers to be a commercial secret of the enterprise must contain an indication of the period of validity of such a regime:

• permanent mode;
• until the publication of information in open sources;
• throughout the duration of the document;
• before the expiration of the limitation period for a claim under a contract, and so on.

What is a trade secret of an enterprise according to the law, and what is an official

There are significant differences between the concepts of "official secret" and "commercial secret":

• Official secrets are more inherent in state and municipal authorities, their officials and employees. In this case, the information is secret due to the interests of the service.
• Trade secret means data that has commercial value, in other words, information of this kind allows you to extract commercial benefits.

Neither jurisprudence nor literature devoted to legal aspects labor activity, do not correlate these two concepts unambiguously and do not contain information about the composition of persons who may have access to information of this kind. For example, it is not clearly regulated whether commercially valuable information will be classified as an official secret if it was entrusted to an employee as part of the performance of his official duties, or whether only the definition of “commercial secret” is applicable to such information.

Types of trade secrets of an enterprise

The trade secret of an enterprise can be classified as:

1. By type of media. Trade secrets include:

Information on a memory card, USB-drives, floppy disks and optical disks;

Directly the devices and mechanisms themselves;

Computer databases;

Printed or handwritten documents;

Data from audio and video conferences, as well as oral meetings.

2. By content. The trade secret of the enterprise in this case can:

Be any property, including intellectual property, which is protected by copyright;

Be a secret mechanism or other hidden material;

be related to financial side activities of the company, to its economy.

What is not covered by the protection of trade secrets in the enterprise

The federal law "On Trade Secrets" reflects a list of information that cannot be a commercial secret of an enterprise:

• Data, the concealment of which is prohibited due to established legal regulations;
• Information related to the safety of citizens;
• Established facts of violation by the employer of labor contracts;
• Information about the staff, working conditions and open vacancies;
• List of trustees who have the right to act on behalf of a legal entity.

How to document what constitutes a trade secret of an enterprise

In the legislation of the Russian Federation there are no clear instructions on the form and content of documents related to the commercial secret of an enterprise. The Company has the right to independently determine all the nuances of relations with employees, which will be reflected in the relevant Regulations. At the same time, the business owner without fail must be guided by the requirements of Article 10 of Federal Law No. 98-FZ of July 29, 2004, which reflects the measures that must be applied to confidential information. These measures should be prescribed in the Regulations on the trade secret regime of the enterprise.

The mentioned Regulation is directly related to several areas of the company's activities at once, therefore, representatives of different departments of the enterprise should take part in its preparation: lawyers, economists, personnel officers, and so on. The Regulation itself and the accompanying Annexes are accepted by the head or collegial body. The title page of the document must contain a seal, signatures, the date of approval of the Regulations and the protocol number.

The norms adopted within the framework of the Regulations should also be reflected in other organizational documents, which include the charter, collective agreement, job descriptions, the rules of the internal work schedule etc.

An important point: all employees who fall under the Regulations on the commercial secret of the enterprise must be familiar with the document against signature. This approach guarantees the safety of the employer and eliminates the leakage of classified information.

The following measures should be taken to protect confidential information:

• Determine the information that will be classified as a commercial secret of the enterprise, as well as the procedure for updating the list (introducing new and excluding old positions). The list of information constituting the commercial secret of the enterprise is determined by the employer.
• Take measures to limit access to important information, establish control methods and procedures for handling such data.
• Make a list of persons who will have the right to access classified information.
• Settle relationships with employees and counterparties in relation to information that constitutes a commercial secret of the enterprise.
• mark material carriers, which contain classified information, marked "Confidential" or "Commercial secret" or use this designation as part of the details of documents related to classified information.

There is a standard structure of the Regulation on the trade secret of an enterprise, a sample document might look something like this:

1. General provisions. This section has its own subsections:

1.1. Basic terms and definitions.

1.2. Information about the company and its owner.

1.3. Information about the structural unit that is responsible for protecting information.

1.4. Legislative acts on which the enterprise relies when working with classified information.

2. The procedure for classifying information as a trade secret. This section should contain:

2.1. List of information related to the commercial secret of the enterprise, with clarification of the terms of access restriction. The list of information constituting a commercial secret of an enterprise is most often drawn up in the form of an Appendix to the main document.

2.2. The procedure for assigning and removing the confidentiality label.

3. The procedure for using information that is a commercial secret of the enterprise. This section describes the procedures for providing, accessing, and terminating access to classified information.
4. Responsibilities of employees who have access to classified information. Here it is also necessary to prescribe the procedure for regulating relations with employees within the framework of protecting the commercial secret of the enterprise, responsibility for violating the established procedure.
5. Ensuring the security of the trade secret of the enterprise. This section reflects all means and methods of information protection.
6. Final provisions. It prescribes the procedure for approving the Regulations and related Annexes, as well as the conditions for making changes and the algorithm for resolving disputes.

This is just a typical document structure. In fact, the Regulation can be drawn up in different ways, depending on the wishes of the employer and the specific conditions for observing the trade secret regime at the enterprise. The example structure above can be used as a basis, but you should make your own adjustments if necessary.

Representatives have the right to request access to confidential information of the company law enforcement, prosecutors and the Federal Tax Service. However, access can only be granted by court order.

Application to the position

Large commercial and manufacturing companies often have a fairly large list of information that is classified as a trade secret of the enterprise. For convenience, in this case, the list should be drawn up in the form of an Appendix to the main document. Protected information may include production, scientific, technical or technological data, as well as research information, etc. Quite often, the list of classified information contains data on the financial and economic condition of the company, as well as developments in relation to original management methods, expansion plans geography of presence or increase in sales volumes and so on.

Is the obligation of non-disclosure of the trade secret of the enterprise always documented?

Documentation of non-disclosure obligations of an enterprise's commercial secret is a mandatory requirement on the part of the law (clause 2, article 11 of Federal Law No. 98-FZ). It is necessary to issue a special memo to employees on the preservation of the commercial secret of the enterprise, which must be issued in the form of an addendum to the labor agreement. If a particular employee is not directly related to classified information, then such a document is signed voluntarily. If the employee, by type of activity, is directly related to the commercial secret of the enterprise, then the corresponding document is signed without fail. In addition, such an employee is also required to undergo special training.

There is no sample of such an agreement approved at the legislative level. The employer independently draws up a document and reflects in it the conditions for the employee's access to secret information, measures of responsibility in case of violation of the established procedure, and so on. An employee can sign such a document both when applying for a job and in the course of his labor activity (when reassigning or in case of changes in job duties).

Under what conditions is it possible to implement the trade secret regime at the enterprise

In order for the company's trade secret protection system to function effectively, certain conditions must be met.

First of all, an agreement must be reached within the organization regarding the financial, production, operational and commercial aspects of the activity. In order to ensure information security, it is necessary to interact with each other by representatives of all structural divisions of the organization.

As an additional motivation for effective protection of a trade secret of an enterprise, personal material liability employees who, by the nature of their activities, are associated with classified information. However, any sanctions of this kind should be documented.

Introduction of a trade secret regime at an enterprise: step by step instructions

Step 1. Enter a trade secret regime at the enterprise.

This measure is a mandatory minimum, which is aimed at conveying to the staff an understanding of the responsibility for disclosing information constituting a commercial secret of the enterprise.

How to introduce a trade secret regime in an enterprise?

For this you need:

• Develop and approve the Regulations on trade secrets. The document must contain an exact list of classified information, as well as the procedure for gaining access to it and the consequences for violations.
• Familiarize all employees with the Regulation against signature. Each employee must not only be aware of the existence of this document, but also read it, and then confirm their familiarization in writing.
• Create conditions for keeping secret information. Determine exactly which documents are company trade secrets. All of them must be kept in safes or cabinets that are locked.
• Keep a record of persons who have access to trade secrets in the enterprise. Strategic documents should be available only to a narrow circle of people who are really connected with classified information by the nature of their activities in the organization.
• Mark all media with important information using the appropriate labels. It should be clearly visible which document is secret and which is public.
• Enter into confidentiality agreements as a supplement to labor agreements with employees. Such an Appendix will contribute to a more detailed understanding of the responsibility for the disclosure of valuable information on the part of personnel.

If the injured party (organization) is not able to prove the fact that a trade secret regime was introduced at the enterprise, then the court will refuse to satisfy the claim for damages in the event of information leakage.

Step 2 Conclude additional agreements for the creation of service works.

It goes without saying that all documents and developments created by the employee in the course of work are the property of the employer. However, no one prevents an employee from declaring that he developed a concept in his spare time and outside of his job duties. In this regard, it is necessary to pay attention to several important points.

• An inventory of the characteristics of all intellectual property objects created by employees (type, name, quantity, size, shape, and so on) should be compiled. The future result of intellectual activity must be individualized.
• It is necessary to indicate to what extent exclusive rights will be transferred to you as an employer. It is best to refer to paragraph 2 of Article 1295 Civil Code RF and register the transfer of rights in full. Additionally, specify each transferable right depending on the type of intellectual property (for example, the right to reproduce, to broadcast, to publicly display, to remake, and so on).
• Try to specify the rights and obligations of the parties to the contract. Pay special attention to the period during which the employee must transfer the rights, in what form he transfers the result of intellectual activity. If necessary, reserve the right to transfer the object for use to third parties.
• It is important to provide financial incentive. Specify a separate amount or state that the financial payment will be included in the employee's salary in accordance with the employment contract. IN judicial practice there are different reactions to the inclusion of such a payment in the salary, in this regard, it is better to designate remuneration as a separate article in the form of a fixed amount.

Step 3 Protect your copyright status.

You should consider all the objects that have been created in your company. If you still do not know their complete list, then you need to register them urgently.

For this you need:

• Check the possibility of registering objects as objects of intellectual property. These include objects of copyright (literary works, phonograms and video recordings, results visual arts), related rights (databases, computer programs), industrial property objects (trademarks, industrial designs, inventions).
• Submit a registration application to the Russian Authors' Society (if the object is related to copyright or related rights) or to Rospatent (if it is an industrial property object).
• Attach to the application all the necessary documents, the list of which needs to be clarified in relation to a specific object of intellectual property.
• Wait for a decision on your application and obtain a copyright certificate or patent.

Step 4 Set the privacy mode when working with partners

In addition to employees, business secrets of an enterprise can also be learned by contractors when performing work or in the process of providing services. Such information leakage can be avoided if:

• Provide for a confidentiality clause in the contract or draw up an appropriate additional agreement.
• Indicate exactly what information you are transferring, to what extent, for how long, and also list the rights and obligations in relation to the transferred information.
• Specify responsibility for disclosure of information. It is best to provide for penalties for each fact of violation. At the same time, the size of the fine is not limited, and you set it yourself.

However, before introducing a confidential regime in relations with counterparties and partners, an intraorganizational regime of trade secrets should be introduced.

Organization of the protection of trade secrets at the enterprise

How to protect the trade secret of the enterprise? Where to begin? First of all, it is necessary to clearly define the protected object and subject. The object of protection will be information related to the activities of the company and of strategic and financial interest to the owners of the company and third parties (competitors). It is this information that is, in fact, a trade secret of the enterprise.

The subject of protection is a direct carrier of information where secret information is recorded (external drives, handwritten and printed documents, other devices for storing and transmitting data).

For high-quality and effective protection of the trade secret of an enterprise, it is necessary to develop an integrated approach that will include several measures and directions. If you do not approach the issue of security comprehensively, the most unpleasant consequences are possible in relation to important information (theft, theft, leakage, falsification, unauthorized).

To ensure a high level of security and high-quality protection of the trade secret of an enterprise, it is necessary to combine legal protection measures with technical means, as well as with organizational and socio-psychological tools.

Legal Measures to Protect Trade Secrets

These measures involve the formation internal documents of a regulatory nature and arranging work in accordance with the requirements of the legislation of the Russian Federation regarding the protection of the trade secret of the enterprise.

The legal basis for the protection of secret information of the organization is prescribed in the charter, orders on the trade secret of the enterprise, internal rules and labor agreements with employees. Collective agreement or the employment agreement may contain, as a separate clause, the obligation of the employee to comply with the rules for the safety of information that became known to him in the course of work.

In practice legal protection important information is organized in established forms, the totality of which is determined by the employer himself, based on the specifics of his company.

These forms include:

An important part legal regulation issues of protection of trade secrets of the enterprise is labor contract with workers. It is best that this document contains a list of basic measures aimed at ensuring the security of important information with which the employee will be forced to work. It is also worth prescribing responsibility for the disclosure of information. In the event of an employee’s negligent attitude to important information or in case of malicious disclosure of such, a well-drafted labor agreement will become the legal basis for bringing the violator to justice and indemnification.

To ensure the safety of strategically important information, the employment contract should specify:

• a ban on the dissemination of financial and secret information, which the employee will get acquainted with in the course of his work;
• prohibition of the transfer of strategic data to third parties without the permission of the head;
• a ban on the use of confidential data of the company during the performance of work that could harm the interests of the company;
• the obligation of the employee to promptly notify those responsible of an attempt by third parties to obtain strategic information;
• duty of the employee to notify immediately officials about the loss or shortage of confidential data carriers, passes, seals, which may cause leakage of confidential information;
• the obligation of the employee upon dismissal to hand over to the official all media with confidential information that the employee used in the course of his work (electronic and handwritten documents, USB-drives and disks, photographs and video materials, etc.).

An agreement on non-disclosure of information that has become known to the employee must also be concluded at the time of dismissal. This approach ensures security and guarantees the silence of the former employee, excluding the possibility of using the company's trade secrets at subsequent jobs or for disclosure to third parties (competitors).

Administrative and organizational measures to protect trade secrets

These measures can be divided into two important blocks:

• functioning of the structural unit responsible for information security in the company;
• the presence of checkpoints (security posts) at the facilities of the enterprise, which are in particular need of protection.

The security service of the enterprise is obliged to be responsible for monitoring visits (issue passes, record the time spent by visitors within the walls of the company).

Service information security also has the right to establish the procedure for declassifying and destroying information constituting the commercial secret of the enterprise. Such a unit is designed to control published information, provide technical means of protection office rooms and equipment, to form a system for protecting electronic media and a set of technical means for monitoring user workstations, to take preventive measures against unauthorized access to classified information.

An important role in the field of protection of classified information is also assigned to the personnel service. It is HR specialists who, together with the information security service, should conduct scheduled briefings on the protection of strategic information. HR managers also create certain conditions that contribute to the systematic improvement of the skills of employees in the field of data protection. It is they who check the employees who are suspected by the security service regarding the theft or unauthorized disclosure of the company's trade secrets. Representatives of the personnel service also conduct explanatory conversations with employees who have decided to leave the company.

Socio-psychological measures to protect trade secrets

Measures of a socio-psychological nature are rather an important addition to organizational and legal ones.

Work with employees should be in two directions, namely:

• Candidates should be assessed correctly during the interview. Candidates for the position should be selected and appointed on the basis of a qualified assessment that takes into account the professional and moral qualities of the applicant.
• It is necessary to financially encourage employees who clearly comply with the established regulations for working with strategic information.

Thanks to competent selection of personnel and timely motivation of existing employees, it is possible to provide up to 80% guarantees for the successful protection of the company's trade secrets.

Technical means of protecting trade secrets

In the modern information society, economic and other business processes have become electronic format, which means to ensure a comprehensive reliable protection trade secrets of the enterprise is possible only through the use of special software and hardware. For example, a DLP system allows you to protect important information in several directions at once thanks to a set of important functions, which include:

• control of all information flows and routes of movement of documents in the enterprise;
• examination of the contents of corporate mail and shipments;
• notification of security policy violations;
• the ability to investigate incidents and prevent the leakage of valuable information.

Today, technical security tools play a particularly important role in the protection of the organization. But effective comprehensive protection of the trade secret of an enterprise is possible only when using the whole complex of the measures described above.

Responsibility for disclosure of trade secrets of the enterprise

In the event of a breach of confidentiality and leakage of classified information, employees may be subject to different types responsibility. At the legislative level, the state provides for quite specific types of such responsibility.

Criminal

According to the Criminal Code of the Russian Federation, a person who divulges a commercial secret of an enterprise can be held liable under Article 283 “Disclosure of State Secrets” and Article 284 “Loss of Documents Containing State Secrets”. These articles imply the arrest of the violator or imprisonment for up to 7 years. Moreover, it is worth remembering about Article 183 “Illegal receipt and disclosure of information constituting commercial, tax or banking secrets”, according to which the violator can be fined or also imprisoned for up to 2 years, and in case of serious consequences for the injured party - up to 10 years old.

Administrative

In the Code of the Russian Federation on Administrative Offenses possible ways penalties for disclosing a commercial secret of an enterprise are specified in articles 13.11-13.14, which establish penalties for:

• violation of the information protection rules established by the relevant license;
• use of non-certified information security tools;
• activities in the field of information security without an appropriate permit (license);
• disclosure of information with limited access.

Disciplinary

For employees of enterprises and organizations different forms property may be subject to disciplinary action, which was reflected in the regulations, articles of association, internal rules of the company and other regulations and is absolutely legal in accordance with Labor Code RF. Employees are responsible for violating the procedure for implementing measures aimed at protecting state, official and commercial secrets of the enterprise in accordance with their labor functions and official position.

civil

Civil liability can be considered as an independent punishment and as a penalty (for example, in the form of a court decision on compensation for moral damage to the injured party).

Any punishment described above can only be imposed through a court. In other words, in order to recover a fine from the violator, or even more so to bring him to criminal responsibility, it is necessary to provide indisputable evidence of his guilt.

It is worth noting that in judicial practice, cases of violation of confidentiality and disclosure of secret information are considered as complex crimes. Errors are often made in such cases regarding correct application legislative articles.

It is very difficult to defend your position to the injured party. To protect your legitimate interests, you need to accurately determine the composition of the crime, correctly draw up a claim and provide indisputable evidence of the guilt of the offender.

Any employee has one or another confidential information about the company's activities. To protect against information leakage to competitors, the company introduces a trade secret regime. Rjob figured out what information needs to be protected and what doesn't; how an employer can protect its secrets and what an employee should do with secrets after being fired.

A trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits (from the Law of the Russian Federation "On Trade Secrets"). In other words, the employer protects that commercial information that allows you to avoid unfair competition from other companies.

Information is more precious than gold

The activity of all modern companies is associated with obtaining and using various information. Moreover, today information is not just information, but a special kind of product that has a certain value. For the employer, the information that is used to achieve the goals of the company is valuable. And the disclosure of such information inevitably deprives the business owner of the opportunity to realize these goals. Therefore, information of a special kind needs to be protected. Such information may include:

Technologies and methods of production.
- Information about technical discoveries and inventions, know-how of the company.
- New technical projects.
- Design documentation, diagrams, records, drawings.
- Strategic plans marketing.
- Financial and economic position of the company.
- Lists of concluded contracts.
- Contact Information clients and partners, etc.

According to the Law of the Russian Federation "On Trade Secrets", the right to classify information as having a trade secret and to determine the list of such information belongs to the owner of the information, that is, the employer.

But not all information can be legally classified as a trade secret. The trade secret regime is not established for the following information:

On the number, on the composition of employees, on the system of remuneration, on working conditions, including labor protection, on indicators of industrial injuries and occupational morbidity, on the availability of vacancies;
- on employers' debts for wages and other social benefits;
- on violations of the legislation of the Russian Federation and the facts of bringing to responsibility for these violations;
- on the size and structure of income of non-profit organizations, on the size and composition of their property, on their expenses, on the number and wages of their employees, on the use of unpaid labor of citizens in the activities of a non-profit organization.

“I am an airport worker. Naturally, we have a provision on trade secrets, which spells out the internal regulations. We have the so-called "First Department", and only it is admitted to the documentation that comes to us with the stamp "secret". To me, as to the head of a certain direction, such documents fall into the hands of the "First Department" personally. All information contained in them is protected by trade secrets. - Nikolai, head of the traffic service.

How to defend yourself?

Measures to protect information must be justified from both a financial and an organizational point of view. Before introducing a trade secret regime, the company's management needs to evaluate the economic effect. It may happen that all the methods used can cost more than the information that is protected.

First of all, you need to determine:

What information will be protected, what is its value for the company and for competitors.
- How long will the information classified as "secret" be relevant.
- How much will the protection of information cost.
- The number of employees who have the right to access information that falls under the trade secret regime.
- Working conditions that ensure confidentiality.

In order to require employees to comply with the conditions of non-disclosure of trade secrets, the company's management must comply with a number of conditions:

To protect commercial secrets, companies draw up a "Regulation on trade secrets". The document defines a list of information related to trade secrets.
- Employees working with classified information should be familiar with this document. In order to avoid misunderstandings, the fact of familiarization must be supported by the signature of the employee.
- The employee needs to explain the features of the trade secret regime and the responsibility for its disclosure. The fact of familiarization with the responsibility borne by the employee for disclosure must be confirmed by the signature of the employee.
- An employment contract concluded with an employee who has access to trade secrets must contain a clause on non-disclosure of trade secrets.

The employer creates the necessary conditions for the employee to comply with the trade secret regime, while not infringing on the rights of the employee.

Expert opinion

Oksana Degtyar

To establish a trade secret regime in an organization, it is necessary to carry out a number of activities specified in paragraph 1 of Art. 10 of the Federal Law "On Trade Secrets":

Determine the list of information constituting a trade secret;
- restrict access to information constituting a commercial secret by establishing a procedure for handling this information and monitoring compliance with such procedure;
- identify persons who have access to information;
- determine the procedure for using information in labor (civil law) contracts;
- put on material carriers containing commercial secrets (folders, papers) the stamp "Commercial secret" indicating the owner of such information (for legal entities- full name and location, for individual entrepreneurs - full name. individual entrepreneur and place of residence).

The trade secret regime is considered to be established from the moment of carrying out the entire specified set of measures.

For the disclosure and illegal use of information constituting a trade secret, liability is provided - disciplinary, civil, administrative, criminal and financial.

Chatty employees are always there. What is it connected with? The Internet portal "Intelligence Technologies for Business" conducted a survey among large Russian companies: "Why do employees talk too much"?

Talkativeness can be associated with alcohol consumption and communication in friendly companies - 32%.
- The desire of employees to earn money in any way outweighs all moral principles - 24%.
- Lack of security service in the company - 14%.
- "Soviet" manner of employees to share experience, to advise - 12%.
- Uncontrolled use of copiers and other information media – 10%.
- Give out a secret "in spite" of the manager or other employees (due to psychological conflicts between the parties) - 8%.

Oksana Degtyar
lawyer, specialist in personnel and service management, personnel records management

After the establishment of the trade secret protection regime in the IRTR (internal labor schedule rules), an indication should be made that, for example, the work of an accountant and a designer is connected with a trade secret. If the employee is familiar with the internal rules and has signed a non-disclosure agreement, in this case he is fully responsible for commercial information. If a person is not ready or does not want to work with a trade secret, he should not take this job. So, for example, if a cashier is forced to sign a non-disclosure agreement, and the work is needed, then the document can be signed, the organization will not be able to prove the legitimacy of the requirements in court.

What to do with secrets after being fired?

If an employee decides to quit, then you should talk with him and remind him of the position that he signed when hiring. By law, an employee is required to keep company secrets even after dismissal, for the period specified in the trade secret regulation. If the period is not specified, then the minimum time for non-disclosure of trade secrets is 3 years.

Foreign experience

In the United States, there is a good practice: if a person who had access to information related to a trade secret leaves the company, then, along with a letter of resignation, he signs a document confirming his intention not to disclose the trade secret of the company. After that, the ex-employer sends two letters. The first is for your former employee and the second - to the new employer of the resigned. The letter contains a warning that the employee possesses secret information and a request not to appoint him to certain positions.

Note to the employer

The right to classify information as information constituting a trade secret belongs to the owner of such information.
- According to the law, not all information can be a trade secret.
- To protect commercial secrets, companies draw up a “Regulation on Commercial Secrets”.
- The employer needs to explain the features of the trade secret regime and the responsibility for its disclosure to employees working with information related to trade secrets.

Note to the applicant

Please read the trade secret policy carefully.
- In order to avoid misunderstandings, the fact of familiarization must be documented.
- For the disclosure and illegal use of information constituting a trade secret, liability is provided.
- To comply with the trade secret regime, the employer creates all the necessary conditions for the employee.
- The employee is obliged to keep the secrets of the company even after dismissal, for the period specified by the regulation on trade secrets.

List of accounting documents. are trade secrets?

Trade secret. How to develop and approve the Regulations on trade secrets? Familiarization of employees.

Question: A list of accounting documents that are a trade secret: for example, cash and bank documents, payroll statements, loan agreements and loan agreements. Are invoices, waybills, advance reports, balance sheets a trade secret?

Answer: Confidential information in itself is not a trade secret. In order for information to be recognized as a trade secret, a trade secret regime must be introduced. The owner of the information himself determines the list of information that constitutes a trade secret. If such a regime is not introduced in the company, then even “secret” materials will not be considered a trade secret.( Clause 2, Article 3 of the Federal Law of July 29, 2004 No. 98-FZ “On Trade Secrets”).

The trade secret regime cannot be established by persons engaged in entrepreneurial activities in relation to the information specified in Art. 5 Federal Law "On trade secrets" in particular the information:

on the number, on the composition of employees, on the system of remuneration, on working conditions, including labor protection, on indicators of industrial injuries and occupational morbidity, and on the availability of vacancies;

the mandatory disclosure of which or the inadmissibility of restricting access to which is established by other federal laws, for example, information provided to the bodies of the FSB, the Ministry of Internal Affairs, the Federal Tax Service, the FSSP, etc.

With regard to the accounting documents and contracts indicated by you, you can introduce a trade secret regime, subject to the provisions of the Law indicated above. Example Trade secret provisions.

Rationale

How to apply for a Trade Secret Statement

In order to prevent the disclosure of information constituting trade secret, develop and validate Trade secret regulation. In it, establish a regime for the protection of confidential information, clearly define the list of such information, as well as the list of officials of the organization who have access to it.

Employee familiarization

Based on the Regulations on Trade Secrets, add a clause on non-disclosure of such information to the employment contract of an employee admitted to classified information (). With the Regulations on trade secrets, such employees must be familiarized with the signature ( Part 3 Art. 68 Labor Code of the Russian Federation). This fact must be recorded in familiarization log employees with a trade secret policy.

What is not a trade secret

Not any information the administration of the organization has the right to declare a trade secret. There is a list of information that cannot be a trade secret. This is public information:
- contained in the constituent documents of the organization, documents confirming the fact of making entries about the organization in the relevant state registers;
- contained in the documents giving the right to conduct business activities;
- about pollution environment;
- about the state of counter fire safety;
- on the sanitary-epidemiological and radiation situation;
- on the number and composition of employees;
- about ;
- on working conditions, including labor protection;
- on indicators of industrial injuries and occupational morbidity;
- availability of vacancies;
- on arrears in payment of wages and other social benefits;
- about violations of Russian legislation and the facts of bringing to responsibility for these violations;
- on the list of persons entitled to act without a power of attorney on behalf of the organization, etc.

A complete list of information that is not classified as a commercial secret is given in the Law of July 29, 2004 No. 98-FZ.

If the organization does not have a Trade Secret Regulation that would define a list of confidential information, it can be established by order the head of the organization. Familiarize this order with the signature of employees who have access to trade secrets.

An example of registration of the Regulations on trade secrets

From the Federal Law of July 29, 2004 No. 98-FZ “On Trade Secrets

Article 3. Basic concepts used in this Federal Law 62

For the purposes of this Federal Law, the following basic concepts are used:

trade secret - a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits;5

information constituting a commercial secret - information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about the methods of carrying out professional activities that have actual or potential commercial value due to their being unknown to third parties, to which third parties do not have free access on a legal basis and in respect of which the owner of such information has introduced a trade secret regime;

Article 4

The right to classify information as information constituting a trade secret and to determine the list and composition of such information belongs to the owner of such information subject to the provisions of this Federal Law.

Information constituting a trade secret received from its owner on the basis of an agreement or other legal grounds is considered to be obtained legally.

Information constituting a commercial secret, the owner of which is another person, is considered to be obtained illegally if it was obtained with deliberate overcoming of the measures taken by the owner of the information constituting a commercial secret to protect the confidentiality of this information, and also if the person receiving this information knew or had sufficient grounds believe that this information is a trade secret owned by another person, and that the person transferring this information does not have a legal basis for transferring this information.

Article 5. Information that cannot be a commercial secret 39

The trade secret regime cannot be established by persons engaged in entrepreneurial activities in relation to the following information:

on the composition of the property of a state or municipal unitary enterprise, state institution and on the use by them of the funds of the relevant budgets;

on environmental pollution, the state of fire safety, the sanitary-epidemiological and radiation situation, food safety and other factors that have a negative impact on ensuring safe operation production facilities, the security of every citizen and the security of the population as a whole;2

on the number, on the composition of employees, on the system of remuneration, on working conditions, including labor protection, on indicators of industrial injuries and occupational morbidity, and on the availability of vacancies;3

on employers' debts for wages and other social benefits;

about violations of the legislation of the Russian Federation and the facts of bringing to responsibility for these violations;

on the terms of tenders or auctions for the privatization of objects of state or municipal property;

on the size and structure of income of non-profit organizations, on the size and composition of their property, on their expenses, on the number and wages of their employees, on the use of unpaid labor of citizens in the activities of a non-profit organization;

on the list of persons entitled to act without a power of attorney on behalf of a legal entity;

the mandatory disclosure of which or the inadmissibility of restricting access to which is established by other federal laws.

Article 6. Provision of information constituting a trade secret 30

The owner of information constituting a trade secret, at the motivated request of a state authority, other state body, body local government provides them with information constituting a trade secret free of charge. A reasoned request must be signed by an authorized official, contain an indication of the purpose and legal basis for requesting information constituting a trade secret, and the term for providing this information, unless otherwise provided by federal laws.2

If the owner of information constituting a commercial secret refuses to provide it to a state authority, other state body, local government body, these bodies have the right to request this information in a judicial proceeding.

Information(lat. - "information") - information about something.

INFORMATION IN BUSINESS ACTIVITIES

Commercial Information is a set of data (information) necessary to ensure the life of the enterprise, to make strategic and tactical decisions, as well as to adapt to the market environment.

Commercial information is an essential element of entrepreneurial activity. Without it, it is not possible to effectively manage, plan, and control results. The information used by the enterprise is very extensive, diverse and affects many aspects of life, science, production, economics, and finance. With the help of information, all components of an operating enterprise are connected into a single complex that produces specific types of products in the appropriate quantity and quality.

Any information used in entrepreneurial activity is useful and necessary in its own way, but at the same time, not all of it is equally valuable and important. Each merchant has his own circle of the most valuable information that he uses to achieve his own goals and the disclosure of which can deprive him of the opportunity to realize these goals, that is, creates a threat to the stability and security of the business. Entrepreneurs are forced to keep such information secret and protect it from disclosure. "Secret" information is in the sense that it in general or in a certain form and the totality of its components cannot be generally known and publicly available. Its open use poses a threat to the economic security of the enterprise, therefore it is subject to appropriate conservation and confidentiality measures.

In order to single out the most important information that needs to be protected from the entire flow of information available to the entrepreneur, the following ACTION ALGORITHM is used:

1. First, the most likely threats are predicted in case of disclosure of certain information. They analyze the scale and criticality of the consequences for the economic stability and security of the company in the event of information leakage, and also assess the possible damage if information gets to competitors or criminals.

2. Then, taking into account possible risks and threats, they develop the most appropriate and effective ways and measures to protect information, and carry out a preliminary calculation of the costs of using the selected set of measures.

3. At the final stage, the economic feasibility and profitability of information protection are evaluated.

Only in the case of a significant excess of the possible damage arising from the disclosure of information from the costs of protecting it, it makes sense to include this information in the category of confidential and organize its protection, including with the involvement of the physical security of the private security company (Protection of offices and office centers).

COMMERCIAL INFORMATION GROUPS

Despite the heterogeneity of the information used at the enterprise, THREE CLUSTER OF INFORMATION can be distinguished from the entire information array, similar in purpose, forms of consolidation and functional features: financial and economic (accounting and statistical), scientific and technical and organizational and managerial.

FINANCIAL AND ECONOMIC CLUSTER includes: indicators of the financial and economic position of the company, volumes and cost of production, information about loans and banking operations, about clients and contracts, about suppliers and competitors, about the capital structure and development plans, about the market situation and business correspondence , various accounting and statistical reporting.

SCIENTIFIC AND TECHNICAL CLUSTER includes: specifications products, technological processes of their manufacture, components and materials, know-how, design documentation, software used equipment, tools, methods and techniques, production cycle, information generated in the process of scientific research and applied development, etc.

ORGANIZATIONAL AND MANAGEMENT CLUSTER is formed directly in the process of managing an enterprise and production teams. This is planned, regulatory, operational, administrative, personnel and other information used to organize the process of enterprise management, accounting and regulation. production process And contractual relations. Such information is contained in constituent documents, contracts with suppliers and buyers, in organizational and administrative documents, in plans for the development and reorganization of production, in instructions for organizing security and control, in personnel documents, in questionnaires and personal data of employees.

All of the above information is of particular value to entrepreneurs and may be of increased interest not only to business competitors, but also to criminal structures. Such information needs protection and control over its use and dissemination. Meanwhile, when assigning this or that information a confidentiality stamp, it is necessary to take into account not only the desire of the merchant to classify this or that information, but also the norms of Russian legislation, according to which not any information can be classified as confidential and protected.

TRADE SECRET

Information security specialists distinguish THREE MAIN GROUPS OF COMMERCIAL INFORMATION, subject and not subject to protection:

1st group - information of open use;

2nd group - restricted access information;

3rd group - secret information intended for a narrow circle of trusted persons, determined by its owner (trade secret).

Information related to the second and third groups is closed for free access, in accordance with the current legislation of the Russian Federation.

Let's take a closer look at each group.

THE FIRST GROUP is public information, which objectively should be open and publicly available, as well as information that cannot be hidden in accordance with Russian law. The list of information, which, in accordance with Art. 5 of the Federal Law "On Trade Secrets" can NOT be classified as a trade secret:

Data of licenses, patents, registration certificates and other documents giving the right to engage in entrepreneurial activities;

Data on employees (their number, working conditions, wages, injuries and occupational diseases);

The size of the property and Money organizations;

Tax payment documents;

Solvency documents;

Documents on compliance with fire safety standards, labor protection rules for workers, environmental protection standards; about the sanitary-epidemiological and radiation situation and other negative factors;

Information about the sale of products that are harmful to human health, as well as other violations of the law and the amount of damage caused.

The SECOND GROUP of information consists of information limited use, accessible, for example, to bodies that have the appropriate legally established rights (police, tax service, prosecutor's office and other state authorized bodies). Restricted information includes unclassified information relating to the activities of the enterprise (management structure, accounting and statistical reporting, job descriptions, etc.), the restrictions on the distribution of which are dictated by production needs.

Most of this information does not make sense and is not profitable to hide from the environment for the entrepreneur himself.

The THIRD GROUP of information is trade secret(production secret), which can be accessed only by a limited circle of persons and in respect of which the owner has the right to apply special measures to protect its confidentiality and protection from illegal use. A commercial secret in an enterprise most often includes: scientific, technical, technological, production, financial, economic, managerial or other information that has actual or potential commercial value due to its unknown to third parties, to which there is no free access on a legal basis, and in relation to which the owner has introduced a trade secret regime (Article 1465 of the Civil Code of the Russian Federation).

A trade secret is a broader concept than just a trade secret. For example, an enterprise can use well-known methods of organizing production, technological methods, equipment, but, despite the public availability of such information, the very fact of their use may be a trade secret. In addition to information of an industrial and commercial nature, a trade secret may contain compromising data that can be used to force the entrepreneur out of the market or cause other damage.

According to the Federal Law “On Commercial Secrets” dated January 1, 2008, a trade secret is understood as a CONFIDENTIALITY of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefit. In other words, the possession of trade secrets gives the entrepreneur an advantage in the competitive struggle, but only as long as this information is kept secret.

The confidentiality regime (commercial secret regime) is understood as legal, organizational, technical and other measures to protect its confidentiality (paragraph 3 of Article 3 of the Law "On Commercial Secrets"). Establishing a privacy regime is prerequisite the emergence of the rights of the owner and the condition for the protection of these rights (Article 7 of the Law "On Trade Secrets"). Necessary condition Legislative protection of information is also its fixation on a specific medium: on a computer hard drive, on flash drives and memory cards, on floppy disks and laser disks, in paper form and in the memory of employees, etc.

The list of information that can be classified as a trade secret by law:

The process of implementing the organization's products and services;

The list of information that entrepreneurs are allowed to classify as commercial secrets in accordance with Russian law changes from time to time. For example, on January 1, 2013, the Federal Law “On Accounting” came into force, which radically revised the possibility of classifying financial statements as information constituting a trade secret. Instead of the imperative construction, Part 4, Art. 10 of the Federal Law of the same name dated November 21, 1996 No. 129-FZ “the content of registers accounting and internal financial statements are commercial secrets” now the direct opposite in meaning is in effect in Part 11 of Article 13 “in relation to accounting (financial) statements, a trade secret regime cannot be established.” Mandatory copies of financial statements constitute a state information resource, to which access is provided to all interested parties. Restrictions are allowed only in the interests of maintaining state secrets.

The presence in the list of information constituting a commercial secret of an enterprise, information that cannot be recognized as such by law, is expressly prohibited by law, in particular, paragraph 2 of Art. 3 of the Federal Law "On Trade Secrets" and Art. 1465 of the Civil Code of the Russian Federation, may lead to the recognition of the "list" as not complying with legal norms, and to challenging the legitimacy of establishing a trade secret regime at the enterprise in general.

* If you need to legally classify information at an enterprise or organization and ensure the protection of trade secrets, please contact the TAGGERD private security company. We have been providing security services for facilities in Moscow and the Moscow region and the protection of confidential information for more than 20 YEARS (since 1993). To solve such problems, we involve specialists in the field information technologies, professional security guards, engineers and technicians capable of providing reliable protection of information from disclosure. The rich experience and knowledge of the PSC employees is a reliable guarantee of the safety of our Clients! We provide security services at a high professional and high quality level, at reasonable prices!

A trade secret is a special regime for the storage, transfer and processing of secret data, the disclosure of which may adversely affect the company's position in the market, the amount of its profit. The management of the organization and other authorized persons have the right to classify almost any commercial information, but in some cases it is impossible to do so. The legislative definition and types of trade secrets, as well as the types of liability for violation of this regime are described in detail in the article.

The main legal relations related to commercial secrets are regulated by the federal law of the same name on the commercial secret of an enterprise.

It gives such trade secret definition: this is a special regime of confidentiality of information, the purpose of which is to obtain commercial benefits, to maintain market positions. Thus, the secret itself is not information, but rather the mode of its preservation, transmission, transformation, etc.

The same article defines the concept of information constituting a commercial secret of an enterprise. It is interpreted quite broadly: it is information of any nature that describes technical, production aspects activities of the company, features of its management and much more. Moreover, all of the above data have commercial value.

One of famous examples commercial secret - the chemical formula of the substance that is part of the Coca-Cola drink and largely determines its taste and aroma (kept secret since 1886). Another example is information about the composition of materials and technical features designs Apple devices(iPod, iPhone). For their disclosure, one of the company's managers at the end of 2014 received a real prison term of 1 year and a fine of $4.5 million.

Other examples of trade secrets relating to various aspects of the organization's activities are described in the table.

Thus, to classified information, the management of the company or individual entrepreneur can include almost any data that one way or another can affect its position in the market, expenses and income. At the same time, the owner of such data decides independently to whom exactly he can transfer them.

Exceptions are cases when the transfer of information is necessary in accordance with the requirements of the law. In this case, information is provided to representatives of federal, regional and local authorities. If there was an unauthorized transfer of data, then they talk about the disclosure of information.

Types of trade secrets

In practice, there are several types of information that constitutes a trade secret:

1. Manufacturing Information - Features technological process, composition of raw materials, operation of equipment, etc.
2. Technical parameters of equipment, mechanisms.
3. Organizational data - information about the features of enterprise management, structural divisions, workflow, etc.
4. Economic - any information of a commercial nature, the structure of income and expenses of the enterprise, net profit for different periods, and much more.
5. Scientific - the results of research, know-how and other discoveries.

There are other classification systems. For example, trade secrets related to prices, contract terms, negotiations, etc.

10 types of data that can not be classified as a trade secret

In general, the company has fairly broad powers to classify any data relating to its activities. However, the same law provides a list of information that under no circumstances can be classified as a commercial secret - this is information:

1. From constituent documents (such papers are always in the public domain)
2. Of the documents in accordance with which the IP received the right to conduct its activities (certificate of registration, extract from the register, license, etc.)
3. On the composition of property (only in relation to budget institutions- state or municipal)
4. About wage arrears, social contributions for employees.
5. About the number of employees, their positions, forms, the procedure for paying salaries, their working conditions, vacancies, requirements for the applicant, etc.
6. About environmental pollution, about ecological, sanitary conditions, etc.
7. About the recorded facts of violation of federal or local laws, decisions of officials, courts to bring to justice.
8. On the conditions for the privatization of state property.
9. About income, tangible property (value and structure), as well as about the company's expenses, the number of its employees and the size of their salaries (applies only to non-profit organizations- charitable, religious societies, etc.).
10. About persons who are authorized to act on behalf of the company without a special power of attorney (first of all, we are talking about managers).

Responsibility for disclosure of trade secrets of the organization

Disclosure of trade secrets, i.e. the transfer of data to third parties (whether intentionally or through negligence) is an unacceptable act or consequence of inaction, due to which the company bears real or potential commercial and reputational risks. Employees who allow the disclosure of trade secrets bear civil and even criminal liability, depending on the degree of their guilt and the severity of the consequences.